DEMONSTRATIVE COMPOSITE RESTATEMENT – THE FLORIDA MEDICAL-NEGLIGENCE DEATH REMEDY AND PROCEDURE ACT

Analytical demonstrative, not enacted Florida law. This restatement does not quote a single statute or rule. It places separately enacted provisions into one continuous outline so attorneys, policymakers, and the public can see their possible combined operation. The cited authorities, their full text, current validity, and subsequent history control.

Demonstrative composite restatement

Section 1. Public policy

It is the public policy of Florida to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Source component: § 768.17, Fla. Stat.

Section 2. Survivors

“Survivors” include the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, specified blood relatives and adoptive siblings. Children born out of wedlock are treated as provided by statute. For this Act, “minor children” means children under 25 years of age, notwithstanding the general age of majority. Source components: § 768.18(1) and (2), Fla. Stat.

Section 3. One action through the personal representative

The personal representative shall bring the wrongful-death action and recover for the benefit of the decedent’s survivors and estate all damages caused by the injury resulting in death. Source component: § 768.20, Fla. Stat.

Section 4. Survivor and estate damages

When there is no surviving spouse, each child may recover lost parental companionship, instruction, and guidance and mental pain and suffering. Each parent of a deceased minor child may recover mental pain and suffering, and each parent of an adult child may recover that damage when there are no other survivors. The estate may recover the categories provided by statute, including specified lost earnings, medical or funeral expenses, and prospective net accumulations under the statutory conditions. Source components: § 768.21(3), (4), and (6), Fla. Stat.

Section 5. Medical-negligence exclusion

When the claim is based on medical negligence, the damages specified in subsection 768.21(3) are not recoverable by adult children, and the damages specified in subsection 768.21(4) are not recoverable by parents of an adult child. Source component: § 768.21(8), Fla. Stat.

Section 6. Probate authority and counsel

The personal representative is a fiduciary who shall settle and distribute the estate according to the Probate Code, and may prosecute or defend claims for the protection of the estate and interested persons. Every personal representative shall ordinarily be represented by a Florida attorney unless the personal representative remains the sole interested person. Source components: §§ 733.602 and 733.612(20), Fla. Stat.; Fla. Prob. R. 5.030.

Section 7. Medical-negligence presuit process

Before filing a medical-negligence action, the claimant must conduct the investigation and obtain the corroboration required by Chapter 766, provide presuit notice, and participate in the statutory screening and informal-discovery process. Section 766.202(5) defines an “investigation” as an attorney’s review of the case against each potential defendant, consultation with a medical expert, and receipt of the expert’s written opinion. Medical records must be made available as provided by law. Source components: §§ 766.202(5), 766.203, 766.204, and 766.106, Fla. Stat.

Section 8. Time limitation and repose

An action for medical malpractice is governed by the limitation and outside repose periods in § 95.11(5)(c), together with the statute’s provisions for fraud, concealment, intentional misrepresentation, and minors. The applicable text and accrual law must be checked for the dates and facts of the particular claim. Source component: § 95.11(5)(c), Fla. Stat.

Section 9. No implied merits determination

Nothing in this demonstrative establishes negligence, causation, standing, damages, timeliness, or constitutionality in a particular case. It shows how separate legal components may confront a claimant before the merits are adjudicated.

Section 10. Combined operation

If medical negligence allegedly causes the death of an unmarried adult who leaves neither a surviving spouse nor a minor child, and the potential claim belongs to the class described in § 768.21(8), the principal noneconomic survivor damages may be unavailable. The personal representative must still use the statutory action, comply with probate requirements, complete medical-negligence presuit investigation and corroboration, obtain and analyze records, and act before the outside time bar. The remaining economic or estate damages may or may not be sufficient to support the professional expense and risk. No single component expressly says that the evidence can never be heard. Their combined operation may nevertheless determine whether a case can practically reach adjudication.

Section 11. Cumulative constitutional question

The resulting question is whether Florida may declare that wrongful-death losses should be shifted to the wrongdoer, merge the death-causing personal-injury claim into a representative wrongful-death action, require specialized and costly presuit proof, remove specified survivor damages for one cause-of-death classification, preserve an outside repose bar, and ultimately leave a class of alleged medical-negligence deaths without a practical path to merits adjudication.

Source map

Prepared by Travis Brett Creighton as a research demonstrative. Verify every component against the current official text before legal use.